Category Archives: Workplace Dress Code Policies

The power of punctuation is alive and well, and proof if it were needed that the devil is always in the detail!

It would appear that the media have, over the past few days, encouraged a view that banning the wearing of Muslim headscarfs by women in the workplace is now lawful. While this is not quite “Fake news on a Trumpian scale,” it cannot be considered an accurate statement of the law either.

The igniter for these headlines is the recent European Court of Justices’ (“ECJ”) decision in the case of Achbita. In short, the case concerned a Belgian Company’s dress code that prevented employees from wearing any visible religious, political or philosophical symbols. The dress code was used as a basis for preventing a Muslim employee from wearing an Islamic headscarf while at work. The Court decided that, as the dress code applied to all religions, Ms Achbita was not treated less favourably on the grounds of her race.

Before we begin basking in the euphoria of premature conclusions that a blow has been struck for common sense, it is worth noting that the Court, unprovoked, added that it was possible for this position of neutrality adopted by the employer to be indirect discrimination.

By way of example, if Ms Achbita had not been a customer facing employee, preventing her from wearing her headscarf at work may amount to discrimination if the employer could not objectively justify the ban.

Employers need to be alert to the fact that although having a dress code prohibiting the wearing of all religious symbols in the workplace may provide a defence against a claim of direct discrimination, it will not by itself defeat all discrimination claims associated with the wearing of religious symbols. It is also worth noting, although outside the scope of this article, that if the dismissal was because of Ms Achbita’s insistence on wearing her headscarf in a customer facing role, exploring whether she may be placed in a non-customer facing role may affect, under English Law, the fairness of the employer’s decision to dismiss.

Consider for instance the case of Bougnaoui, here the ECJ decided that it was unlawful for an employer to accept a customer’s request not to be served by an employee wearing an Islamic headscarf. The Court did not consider the wishes of a customer to be a “genuine and determining occupational requirement,” which would have justified the discrimination.

There will always be a balance to be struck between the interests of the employer and the detrimental impact on the employee. In the case of Bougnaoui the ban amounted to direct discrimination because it was imposed in response to a customer’s objection rather than being based on any existing dress code designed to achieve neutrality.

As a general approach, employers should treat employees’ requests to circumvent a dress code for religious reasons carefully, sensitively and respectfully; and should consult with the employees with a view to reaching a satisfactory solution. This may very well prevent an employer from having to defend itself against such claims.

SUMMARY: Readers may remember that, last year, Emily Blunt criticised the Cannes film festival when a woman was denied entry to a screening for wearing flat shoes and that in May of this year it was reported that a woman was sent home from work after refusing to wear high heels. With recent statistics showing that women are buying more trainers than high heels it may be fair to assume that flat shoes are replacing heels as the woman’s shoe of choice. But how does this impact on the workplace and how might organisations deal with, what might be termed, more casual attire being worn by its employees? This is where the use of a dress code policy comes into play. For those employers considering the implementation of a dress code policy we have set out below five key considerations which should be taken into account when deciding the dress code that best suits your organisation’s requirements.

Workplace Dress Code Policies

Make dress codes relevant to roles – consider the reasons behind the code.

Ensure the code is non-discriminatory, applying equally to men and women. Different standards of dress can be identified as long as the standards, for example for males and females, are equivalent and applied equally.

There could be a requirement to cover tattoos and body piercings if there is a sound business reason for this e.g. a customer facing role.

Workers may want to wear items that manifest their religious faith e.g. a hijab or kippah. It may be possible to restrict this, but there could be discrimination issues – seek legal advice!

The dress code should be in writing and communicated to all staff. Consultation would help to increase overall adherence.